F.A.C.T.

Falsely Accused Carers and Teachers

Fighting injustice – lobbying for change

The Parole Board – too close to Government ?

An article by George Jensen from our ‘In
‘In my opinion’ series

There has been a considerable degree of interest regarding the impact recent Court
judgements may have on men who are applying for parole under the present rules and
procedures.
On the 18th February 2008 the Appeal Court held in a reserved judgement, that the
Parole Board’s relationship with the executive [Government] was such that it did not
have the independence required when determining whether convicted prisoners should
remain in prison or be released on licence.
This decision arose following an appeal by the Secretary of State for Justice against the
decision of the Queen’s Bench Divisional Court (Lord Justice Hughes and Mr Justice
Treacy) to grant a declaration that the Parole Board did not meet the requirements of the
common law and of article 5.4 of the European Convention on Human Rights to
demonstrate objective independence of the executive and of the parties.
This judgement, consisting of nineteen pages, makes fascinating if somewhat complex
reading; essentially what the Court decided was that the Parole Board’s relationship with
the Government was such that it did not enjoy sufficient independence to carry out it’s
role of reviewing the continued detention of prisoners lawfully, as is required by common
law and article 5.4 of the European Convention on Human Rights.
The case, before The Queen’s Bench Divisional Court, which caused this judgement was
brought by an application of Michael Brooke, Gagik Ter-Ogannisyan and Michael Murphy
for judicial review of the use of the Board to undertake review of their sentences. This
amounted to a declaration that under the common law and article 5.4 of the Human
Rights Convention, guaranteeing the right to speedy examination of the lawfulness of
detention, the board lacked objective independence of the executive (government). They
argued that sentencing by the criminal courts had become the subject of imprisonment
regimes in order to specifically address issues of public protection. This meant that the
Courts not only had diminishing influence over when and whether an offender’s
incarceration might end but also that the Parole Board could recommend or direct a
course of action and require the Secretary of State to act accordingly.
On February 1st, in an almost parallel judgement Lord Chief Justice, Lord Phillips
criticised the Secretary of State over the status of the Parole Board. The Board, as you
will be only too well aware, is the body that determines whether a prisoner may be
released on parole (licence). In his judgement Lord Phillips stated that it (the Parole
Board) lacked independence from the Government and should be subject to change –
this, it would seem, should afford some degree of hope to prisoners who maintain that
they should be freed. They could now claim that continued detention in order to protect
the public was unfair. In this judgement Lord Phillips effectively dismissed the appeal by
Jack Straw against the ruling above (that the system did not comply with the Human
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Rights Act), and added that the High Court’s findings that the Parole Board lacked
independence were fully justified by the evidence.
The judgement suggested that the problem had arisen by a fairly recent change in the
function of the Parole Board. It was a body advising the Secretary of State over the
release of prisoners, but this had been changed and it is now a Judicial Body deciding
whether to free prisoners or not.
The Secretary of State appoints members to the Board, and can therefore influence its
decisions. Lord Phillips said, “He (the Secretary) also has direction over the way it carries
out crucial assessment of risk”. (See below)
The Ministry of Justice said that the ruling would not mean that any prisoners would be
released early, nor would any be able to claim compensation.
One of the solicitors who won this landmark victory, John Dickinson, said, “if it is upheld
on appeal,” (he was referring to the original High Court judgement,) “it will affect not
only ten of thousands of prison inmates but all who rely on Parole Board decisions.”
Hood, Shute et al, in a study concerning the element of risk suggested by the Parole
Board found that “as many as 66% of those maintaining innocence were identified by at
least one member of the Parole Board as being of high risk - but only 50% of those who
did not maintain their innocence were considered to be high risk. However, of their
sample, only one considered high risk in the group who maintained innocence was
reconvicted of a sexual offence while all but one of the group who did not maintain
innocence, were subsequently reconvicted”.
It would appear therefore that members of the Parole Board greatly overestimate the
reconviction risk of prisoners who claim their innocence. The Parole Board, in making
their assessments, are of course dependent on information supplied by the Prison and
Probation Services.
What does this judgement mean for the Parole Board?
Unless the minister of justice, Jack Straw, succeeds in overturning the judgement in a
further appeal, the Board will have to be restructured to make it independent of the
Ministry of Justice, possibly putting it under another department of the court service.

Why was the ruling a surprise?

Prisoners have previously brought cases to the European Court of Human Rights in
Strasbourg claiming that the Board was not independent.

Why did the Government lose now?

The High Court judges had much more evidence than the Strasbourg court had of the
closeness between the Board and the Department. The Home Office had interfered with
the Board’s discretion.
It has been suggested that there will be no automatic consequence arising from this
judgement. However the individual may use it to some extent in an endeavour to
persuade the Parole Board that they might be released on parole without undue risk or
unnecessary encumbrance. It is expected that in time the Parole Board would be
required to take a more objective approach than when acting under Government
pressure or control.
It would appear that the major consideration which determines the Board’s decision is
that of presumed risk to the public. The Parole Board does not in fact make any direct
assessment of the risk element associated with any particular prisoner, but is entirely
dependent upon the reports which it receives from the various sources of ‘evidence’
presented to them. For example the Home and Prison Probation Officers, who may or
may not use the available format for assessing risk, namely Static 99 – OASYs or more

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recently Briefings. None of these methodologies are in the least bit satisfactory and
despite any attempt by those administering the assessment the test is highly subjective
in the content and in interpretation.
The tendency for the Parole Board to erroneously overstate the degree of risk posed by
any individual prisoner was exemplified in the judgement of Mr Justice Jackson sitting in
the Royal Courts of Justice in 2002; Mr Sharman V Secretary of State Case No;
CO/1181/2002, said in his judgement “I have come to the conclusion that when one
looks at all the factors in this case, it is arguable that the Parole Board has fallen into a
legal error because they, and the persons advising them, have focused too excessively
upon the risks arising from the denial of guilt”. Thus where any report, whether to the
Parole Board or otherwise makes claim to a high risk element this should be challenged
and the evidence upon which it is formulated explained.
It follows therefore that when making an application or submission to the Parole Board
for consideration of release on parole; one should make it a positive element in your
personal presentation that the risk you present is either extremely low or non-existent
and give a reasoned argument to support your submission.

Copies of the F.A.C.T. publication ‘Parole Matters’ is available to F.A.C.T. members from
F.A.C.T. PO Box 3074. Cardiff. CF3 3WZ or from parole@factuk.org

I have also written a comprehensive review of the literature on courses and risk
assessment procedures which is available by post with a large stamped addressed
envelope.

As a matter of interest, the Parole Board was created in 1957 as an executive non-
departmental public body operating under the sponsorship of the Home Office. Following
the recent creation of the Ministry of Justice all former functions relating to the
management of prisons have been transferred to the new Ministry.

In March 2007 the Board consisted of a Chairman, 3 High Court Judges, 28 Circuit
Judges, 9 Retired judges, 21 Psychiatrists, 4 Criminologists, 8 Psychologists and 71 Lay
members; nearly all serve on a part time basis.

Board panels usually consist of three members, one of whom is referred to as ‘The Lead
Member’ he/she studies the documentation of a case more thoroughly than do the other
members, and makes recommendations to the other members of the Board who are
sitting. The time spent on each case is extremely short; the group having to consider a
number of potential parolees on each occasion that they sit. The lead member’s
recommendation is invariably adopted by the sitting panel.
Note:
Prison law is constantly changing. Always consult a solicitor for an update position on how the law
affects you personally.

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